R. v. Jennings, 2011 ONCJ 579

COURT FILE NO.: St. Catharines - 2111-998-09-N5760-00 DATE: 2011·10·26 Citation: R. v. Jennings , 2011 ONCJ 579 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MARK JENNINGS Before Justice A.J. Watson Heard on March 24, 2011, May 20, 2011, September 1, 2011, and September 21, 2011 Judgment released on October 26, 2011 M. Eshuis ............................................................................................................... for the Crown C.

Spettigue .................................................................................... the accused, Mark Jennings WATSON J.: Overview [ 1 ] Mark Jennings is charged with having the care or control of a motor vehicle while impaired by alcohol and with having the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood. The allegations stem from an incident that occurred in a parking lot in Niagara Falls on December 13th, 2009.

The defendant, as applicant, has raised several Charter issues by way of an Application dated March 16th, 2011 and seeks a stay of the proceedings or the exclusion of evidence at this trial. The defendant/applicant further submits that at all material times he was not in care or control of a motor vehicle. The evidence was called by way of a blended trial. The Evidence of Nina Papetti [ 2 ] On December 13th, 2009, Nina Papetti was working as a bartender at the Mediterranean Cafe in Niagara Falls. She went outside to have a cigarette.

She saw a man walking across the parking lot coming from the area of another bar Chip N Charlie’s. She saw the man fall at least twice and possibly three or four times. When asked if she noticed anything about his walk, she testified “It wasn’t very balanced and umm, you know, like I said, he was swaying. Wasn’t a focused, direct walk to the car...It was like zig-zagging kind of all over the place.” [1] She testified that she also observed him drop his keys a few times and then pick them up. She identified the defendant as the person she had observed.

She estimated that it took the defendant five or six minutes to walk to a vehicle because of the swerving, dropping of keys and falling, when it would normally in her opinion have been a 30 second walk. The vehicle was in the Mediterranean Café parking lot about 20 feet away from her. She testified that he tried to put the key into the driver’s side door and dropped the keys again. He finally did get the door open and he entered the vehicle. [ 3 ] Ms. Papetti testified that she hoped he was not going to try and start the vehicle because she knew that he was impaired.

She testified that he attempted to start the vehicle. She heard it turn on and saw the headlights turn on. She testified that the vehicle stalled and by that she meant that it made a noise and then shut off. She testified that he was starting the vehicle and then falling asleep. He was leaned forward when the vehicle was started and then would lean back as if he was falling asleep or was not able to sit upright. She then called Chip N Charlie’s as a courtesy to ask them if they would like to call him a cab or if he had been drinking there to avoid calling the police.

She noted that the engine was on 30 seconds to a minute and that it happened repeatedly, about five times. Each time he would try to start the vehicle, he would fall asleep or lean back. Chip N Charlie’s did not want anything to do with the situation so she testified that she phoned the police since as she put it she was afraid that he would kill someone and she would read about it in the morning. [ 4 ] She testified that it was cold and the parking lot was icy. She had seen many other people in the lot that night however he was the only one who fell numerous times.

The police arrived quickly maybe less than 10 minutes after her call. The male stayed in the driver’s seat during that time period and had stopped trying to start the car. The police officer knocked on the window and shone his flashlight through it. The police officer then opened the door and took him out of the car. He could not stand on his own. The officer was trying to hold him up and asked him questions but she could not hear everything they were saying. Another officer arrived. They got the defendant into the back of the police car and she went to give her statement.

Her statement was typed out by a police officer.

[ 5 ] In cross-examination she clarified that there are two plazas. The Mediterranean Cafe is at the left end of one plaza and there is a plaza beside it and Chip N Charlie’s is at the left end of that plaza. There is a little curb separating the two, like a parking barrier. She did not recall the defendant trying to make a cell phone call in the vehicle but testified that it was possible. The first time he fell he was probably 10 or 15 feet from the vehicle. The second time maybe five feet away. She agreed that the first fall was to the chest and facial area.

She agreed that after standing up he appeared to be somewhat dazed and confused. In her police statement she said, “As I was sitting there I saw a male walk across the parking lot and he fell as he was walking towards his car.” In the police statement she did not say how many times. She had earlier testified that he dropped his keys at least twice.

In her police statement she said he “...dropped his keys as he was trying to open the door.” Again she did not say this happened more than once in her police statement. [ 6 ] She testified that she believed the defendant’s vehicle was a white jeep or SUV but that it was a while ago. She did not see him put on a seat-belt. She is certain that he tried to start the car three times. She testified that he tried to start it but it looked like he was falling asleep. She agreed that in her statement to the police she did not refer to the person trying to start it more than one time.

She testified that the car sounded like it stalled. She denied that it was equally consistent with someone turning it off. She did not see any movement of the car. She testified that there were little parking curbs two or three feet long in the lot however she testified that they were not large barriers, perhaps three or four inches high and that a person could drive over them. There was one of these curbs in front of the jeep. The police car came in straight and then angled so that it was parked diagonally across the rear of the jeep. The Evidence of Police Constable Deleeuw [ 7 ] P.C.

Deleeuw was dispatched to the call at 8209 Lundy’s Lane, Niagara Falls at 9:35 p.m. He had received information that a male was observed walking in an intoxicated state to his motor vehicle, parked in a parking lot at Lundy’s Lane and Kalar Road. He was alone and arrived on scene at 9:40 p.m. He observed a black jeep parked in the parking lot facing eastbound. There is a variety store, the Mediterranean Cafe, a sub shop and gas station at this location. He testified that he had parked his cruiser to the side of the jeep on the passenger side, exited and approached the driver’s side door of the jeep.

He observed a male leaning forward over his steering wheel. He was slumped forward, his head was leaning forward, and his back was slouched forward in a curved position. His head was over the top of the steering wheel. His legs were directly underneath the steering wheel. He did not recall if the vehicle had a standard transmission. He attempted to gain the male’s attention. He opened the driver’s side door and nudged his shoulder with his hand several times. He did not get a response. Each time he nudged him a little harder to try to wake him up.

After several nudges he leaned back very quickly in a jerking fashion and stated “Fuck off, this is my house.” [ 8 ] The officer testified that he noted that his speech was slurred and that he could smell a very strong odour of alcohol coming from his mouth. The officer testified that he saw some keys on the corner of the passenger seat approximately 12 inches from his right leg. It was the officer’s opinion that they were easily accessible to somebody in the driver’s seat. P.C.

Deleeuw testified that he formed the opinion that the defendant was impaired by alcohol and advised him that he was under arrest for care and control of a motor vehicle while impaired by alcohol. The defendant was unresponsive and looked at him with a blank stare. He informed him several times he was under arrest and the reason for the arrest however he was unresponsive and would not exit the vehicle. P.C. Deleeuw testified that as a result he took physical control of him by grabbing him by the left arm and he placed him on the ground on his face.

He did this to gain control of the defendant who was unresponsive and would not comply with his order that he was under arrest and to exit the vehicle. He observed that the defendant’s eyes were red. He handcuffed him at the rear and P.C. McFarlane arrived on scene as he was in the process of handcuffing him behind his back. He was placed in the rear of the cruiser. [ 9 ] P.C. Deleeuw testified that the arrest of the defendant was made at 9:45 p.m. He began transporting him at 9:54 p.m. to Niagara Falls Two Division. He went directly with the defendant to the police station.

At 9:55 p.m., while in the cruiser he read him his rights to counsel directly from his duty book. He said he did not want to call a lawyer. He cautioned him as well. He asked him if he had been drinking. He informed him he had six beers and smoked some marijuana but he is not sure when this conversation occurred, that is, before or after the breath demand was made. He did make a breath demand at 9:55 p.m. directly after he provided him with his rights to counsel and caution. He read the demand from his duty book. He does not have a note as to whether he understood. They arrived at the Division at 10:05 p.m.

Once at the Division the officer testified that he made further observations of the defendant swaying and noted that he appeared to be off balance and unable to hold himself upright while standing in the cells. It took three or four minutes for the processing to take place and he stayed with him until he was placed in a cell. He then went upstairs and began his paperwork. [ 10 ] P.C. Deleeuw testified that he introduced P.C. Lucy, the breath technician, to the defendant in the cell area at 10:50 p.m. P.C. Lucy was at the Division several minutes prior to the introduction. After introducing him, he left.

Later he was involved in serving documents to the defendant which he believed had been prepared by P.C. Lucy. A Notice of Intention to produce a Certificate was marked Exhibit “A”, and a Certificate of a Qualified Technician was marked Exhibit “B”, subject to rulings regarding their admissibility at this trial. [ 11 ] P.C. Deleeuw testified that there is a police policy that persons would not be released from the police station if intoxicated into the public. He testified that the defendant was not even close to being releasable when he last saw him.

He was not able to care for himself and in his opinion he would have been a danger to himself and to the public because of his intoxication by alcohol. In cross-examination P.C. Deleeuw testified that he does not know what the normal release procedure is at the police station since he does not deal with the release of prisoners. [ 12 ] In cross-examination P.C. Deleeuw testified that his note regarding the original dispatch radio transmission to the scene is that a witness observed somebody get into the driver’s seat of a black jeep.

He agreed that he was not advised that the jeep was white. [ 13 ] He recalled parking his vehicle on a bit of an angle to the rear of the jeep. He agreed that parking behind it would prohibit it from going forward because of the parking curbs in front and that it would be difficult to bounce over the barriers. He testified that he would agree that the vehicle could not move forward. [ 14 ] He testified that he observed a female seated approximately 15 to 20 feet away to the north of the vehicle at the front door of the cafe. Chip N Charlie’s was about 50 to 60 feet away.

[ 15 ] It was suggested to him that he was relying on

section 48 of the Highway Traffic Act in investigating the vehicle in the parking lot and he testified that he did not recall

section 48 of the Highway Traffic Act . He was advised he was empowered by that

section to investigate impaired drivers and he agreed that he was relying on that power whatever the

section number. [ 16 ] P.C. Deleeuw testified that he did not recall any injuries to the defendant or abrasions on his face. When he earlier testified that he could not articulate his words, by this he meant the entire statement “Fuck you, this is my house.” He appeared to him to be unresponsive, not dazed or confused. He was looking at him with a blank stare. He then agreed that how he appeared was consistent with someone who could be dazed or confused or could have fallen and banged their head. He had information from the witness that he had fallen in the parking lot.

He agreed he grabbed him by the left arm, pulled him from the driver’s seat and put him face down on the tarmac. He cuffed him when he was down on the tarmac to the rear. He searched him at the back of the cruiser. [ 17 ] He was asked as to the basis for his opinion that he was impaired. He based his opinion on the strong smell of alcohol emanating from his person, his mannerisms when he arrived at the scene, that is being slumped over the steering wheel of the car.

Also his speech patterns, including the fact that he could not articulate a word clearly, slurred them together and he had bloodshot eyes. [ 18 ] His notes indicate that he left at 9:54 p.m. for Two District. He would have alerted dispatch he was bringing an impaired person and needed a breath technician at about the same time. He testified that it was common practice for him to administer the rights, demand and caution when driving. [ 19 ] He agreed it was possible there was a cell phone in the defendant’s car but he has no recollection.

He searched the vehicle after he put the defendant in the cruiser at the scene. He reached in and grabbed the keys and secured the vehicle. He did not try the keys to see if they worked in the ignition. [ 20 ] P.C. Deleeuw testified that he never asked the defendant in the cells if there was a responsible person who could come and get him. The Evidence of Police Constable Ryan [ 21 ] Police Constable Tara Ryan, whose last name at the time was McFarlane, testified that she was dispatched at 9:35 p.m. on December 13, 2009 to an impaired call.

She was told that a complainant was witnessing a male trying to get into a jeep in the parking lot of the Mediterranean Cafe at 8209 Lundy’s Lane. The name of the complainant was Nina Papetti. She was alone in her cruiser when she arrived and witnessed P.C. Deleeuw attempting to arrest the defendant who was on the ground and he was attempting to handcuff him in what appeared to be a bit of a struggle. The jeep was on the east side of the parking lot and the cruiser was behind the jeep blocking it from reversing. The jeep she believes was black. After she assisted P.C.

Deleeuw in getting the defendant into the rear of the police vehicle, she approached the civilian witness and spoke with her with respect to what she had witnessed. She had a brief encounter with the defendant and from her observations he appeared to be impaired due to the consumption of alcohol. [ 22 ] She testified that persons must be sober enough that they are not going to harm themselves or be a danger to themselves before they are released.

In her opinion from her dealings with the defendant, he would not have been in a condition to release. [ 23 ] In cross-examination she testified that she assumed that the defendant was being arrested when she arrived. He was hard to understand and slurring and mumbling. She agreed that the black jeep could not have been driven forward because of the curb and that P.C. Deleeuw’s vehicle was parked facing northbound on an angle blocking the rear of the jeep. The defendant was unable to stand on his own and she assisted him in walking. [ 24 ] She spoke with the complainant in front of the Mediterranean Cafe doors.

If the person is not comfortable typing, she asks them to go slowly and she types word for word what they say and they read it over and make changes if necessary. She believed that she typed the statement and not the witness and that the witness was standing at the window of the cruiser at that time. She did not sign her notebook and she does not recall if she locked the statement. She testified that it was possible that the defendant’s vehicle was white but she believed it was a dark coloured vehicle.

The Evidence of Police Constable Chris Lucy [ 25 ] Police Constable Chris Lucy testified that he is a qualified breath technician, qualified to operate the Intoxilyzer 5000C which is an approved instrument. He was advised by dispatch of the investigation at 9:46 p.m. and thereafter drove from Wainfleet to Two District in Niagara Falls. The drive took about 30 minutes and he went directly there upon receipt of the call. The weather was cold and wet and the roads were icy. He arrived at the police station at 10:13 p.m. At 10:16 p.m. he arrived in the security area in the breath room.

He prepared the instrument by conducting a diagnostic check and a calibration check, the latter at 10:19 p.m. He formed the opinion that the instrument was in proper working order. At 10:37 p.m. he spoke with the arresting officer P.C. Deleeuw and accepted his grounds for the arrest. P.C. Lucy testified that he did not recall what happened between 10:19 p.m. and 10:37 p.m. At 10:45 p.m. he pressed the start test button to enter data into the intoxilyzer and he did an audio-video equipment check. At 10:50 p.m. the defendant was introduced to him by P.C. Deleeuw in the breath room.

At 10:52 p.m. he read the defendant his rights to counsel and a caution which he read from his duty book. He also gave him a secondary caution. He read the breath demand to the defendant at 10:53 p.m. [ 26 ] P.C. Lucy testified that he pushed the start test button which initiated an air test calibration and ten system and three internal checks. He formed the opinion the instrument was in proper working order. He obtained two suitable samples of breath. At 10:58 p.m. he received the first sample which analyzed as 266 milligrams for every 100 millilitres of blood.

At 11:21 p.m. he received another suitable sample which analyzed as 258 milligrams in 100 millilitres of blood. The intoxilyzer test record was introduced as Exhibit “C”. He prepared a Certificate of a Qualified Technician and a Notice of Intent. He gave both of these documents to the arresting officer. He identified the Certificate filed as Exhibit “B” and testified that the contents of Exhibit “B” were accurate. [ 27 ] P.C. Lucy testified that the defendant was clearly intoxicated by alcohol. He noted a very strong, overwhelming odour of alcohol coming from his breath when he spoke.

He had bloodshot eyes, he was crying, he was upset, and had extremely slurred speech.

At times it was difficult to understand him. On his left cheek there was a red scab and on his nose there was a small cut. [ 28 ] P.C. Lucy testified that generally speaking Niagara Regional Police do not release anyone who is intoxicated until they sober up. His last dealing with the defendant was at 11:28 p.m. and he was clearly intoxicated and would not have been safe to release. The DVD of the video room testing was played at this trial and marked Exhibit “D”. P.C.

Lucy testified that the times displayed in the video were not accurate and he had used his watch for times on this date. [ 29 ] In cross-examination, P.C. Lucy agreed that the instrument was ready to accept samples at 10:19 p.m. except for the input of personal data which he had yet to receive from the investigating officer. He began receiving the grounds at 10:37 p.m. which took eight minutes. At 10:48 p.m. he was involved in the audio-video

preamble which took two minutes. He did a start test and full self- diagnostic system check again at 10:55 p.m. [ 30 ] He concluded all his dealings with the defendant at 11:28 p.m. He reiterated that his opinion was that he was intoxicated. He had an overwhelming odour of alcohol emanating from his breath, he had red eyes, he had slurred speech, and at times he was difficult to understand, he was unsteady on his feet. He agreed that he was crying throughout the course of the evening which possibly caused bloodshot eyes. [ 31 ] P.C.

Lucy testified that it is the Staff Sergeant who makes the decision whether to release someone from the police station. He concluded his dealings with the defendant at 11:28 p.m. He does not recall who the Staff Sergeant was on duty. It was put to him that the promise to appear appended to the court information indicates that he was released December 14th at 7:50 a.m. and is signed “P.C. Rogers”. He testified that he does know a Staff Sergeant with this name. He further testified that a person’s level of intoxication is a factor in when to release.

They will not release someone with a high level of alcohol in their system out on their own for their own safety. This is what he has been told. He agreed that if there is a responsible person available an individual could be released earlier to a responsible person. He did not make any inquiries of the defendant as to whether he knew someone who could assist him in his release. He does not know how the release time was determined or what criteria were applied to Mr. Jennings. P.C.

Lucy agreed that the elimination rate for alcohol from the body is generally 10 to 20 milligrams of alcohol in 100 millilitres of blood every hour. In that case the lowest reading at 11:20 p.m. was 258 milligrams as rounded off at 11:30 p.m. He agreed that if the defendant was held for eight and a half hours after the second test then his blood-alcohol range would be 85 milligrams to173 milligrams at the time of his release. The Evidence of Mark Jennings [ 32 ] Mark Jennings testified that he is 47 years of age and is employed at Ophardt Hygiene in Beamsville as a quality control technician.

On December 13th, 2009, he drove to Chip N Charlie’s on Lundy’s Lane in his 2001 black Jeep T.J. He arrived at around 4:30 p.m. to 5:00 p.m. and was alone. He had a girlfriend at the time, Joanne, who was at her home as far as he was aware. He went to Chip N Charlie’s to watch the football game and to get something to eat. The parking lot between the Mediterranean Cafe and Chip N Charlie’s is broken up by an island, a mini-boulevard with grass. He started drinking. He had a beer and a few shooters. He never did eat any food. He does not recall the exact time he left.

He testified that he had drunk too much and was wanting to go home, wanting to go to Joanne’s. He testified that he started walking towards Montrose or the Lundy’s Lane area to get to Montrose where Joanne lives. It is a 20 to 30 minute walk. His legs felt weak and he felt he needed to get somewhere fast safely for himself. He went back to his jeep. He recalls it was slippery and he dropped his keys once just before he got to his jeep. At the boulevard area he also fell and banged his head quite badly. He was hurt above his eye and around his eye. After the fall he felt he needed help.

He was upset and felt he should make an effort to call Joanne. The boulevard area was at the front of his jeep. He was parked up against the curb area. [ 33 ] He testified that he knew he couldn’t walk, couldn’t drive and driving was never an option to begin with. He testified as follows: A. Yes, I knew I couldn’t walk and I knew I couldn’t drive and I knew driving was never an option to begin with.

I was basically, I made an attempt to, to get a hold of her and I, I really didn’t think it was gonna – well, I, I guess I knew it wasn’t gonna be good either way, calling her, so I, I, I ended up I, I, I don’t think making that – I, I really don’t, I knew I was upset and I knew I didn’t want to get anybody else involved and I knew I was in a situation where I was stuck where I was and I, I, I just, I started crying.

I just, I was gonna, I was angry, not angry, but I was upset at myself and everything going on and I just, I prayed to God that He’d keep me alive that night. [2] [ 34 ] He started his vehicle and plugged in his charger and phone and made an attempt to get hold of Joanne. His cell phone was in his car but was dead. He testified as follows: A.

Well, I, I, I knew I needed help and I knew I couldn’t walk there safely, myself and I, between my smashing my head and the alcohol that I did drink, I was wanting help and I, I, you know, I couldn’t – but I didn’t want to get anybody else upset or anything, so I, I just, I, I, I ended up not doing what I guess, getting the help that I – I basically said, you know what, I, I leave it to God and I, and I just wanted Him to leave me safe there that night. [3] [ 35 ] The defendant testified that he started the jeep to give his cell phone power.

He then changed his mind, not wanting to get Joanne upset and threw the phone down. The car was started for less than a minute. He felt that he would be fine there, meaning safe. He testified that he was in his jeep for the night. [ 36 ] The defendant testified that his jeep has a standard transmission. To start the jeep you have to push the clutch in. He put the jeep in neutral. It had been in first gear with the emergency brake on. The emergency brake was still on when he started it in neutral.

He started it in neutral so that it would not move anywhere when it was started and so that he could take his foot off the clutch. The car will not move when you take your foot off the clutch. When it was in neutral he put his foot on the clutch and turned the ignition over. It will not move until he engages it in gear and he testified that he did not do that.

[ 37 ] The defendant testified that he heard bangs or knocks on his driver’s window. He saw police lights going and testified that he was shocked. He wound the window down and believes that he unlocked the door. The officer said things that he cannot recall and opened his jeep door and looked around. He had put his keys in the console beside the passenger seat. He clarified later they were between the passenger seat and the centre console. He put them there so that they were not in plain view and he would know where they were when he woke up the next morning.

The officer rooted through above him and found the keys. The officer got him out of the jeep and put him face first on the ground. He testified that he was in shock and could not believe what was happening. After answering some questions from him and another officer who arrived, he was put into the police cruiser and taken to the station. He had become aware of why he was arrested after the questioning and before he was put into the vehicle. [ 38 ] The defendant testified that he did not talk to a lawyer that night and did not remember being asked if he could.

They released him the next morning but he wanted to go home a lot sooner than that. He could have called a few people including Joanne and his daughter. He was not asked if he had a responsible adult who could assist. [ 39 ] In cross-examination, it was suggested to him that he was drunk. He testified that he was not denying that he drank too much alcohol, probably five or six beers and some shooters. The beers were pints of draft and he had at least three shots. He had also had three beers at a friend’s earlier at 12:00 to12:30 p.m. while watching the football game before he went to the bar.

He denied that he was able to walk back safely to the bar to call from there. He testified that he did not phone Joanne from the bar because his plan was to walk there. It was 20 seconds into his walk that he changed his mind. He agreed that he was very confused that evening, however testified that driving was never an option. He originally was going to walk to Joanne’s house but changed his mind in part because he was so drunk he did not want her to see him in that condition. He then denied it was because he did not want her to see him stating that he could not walk there.

He went to pick up his keys and that was when he fell. He disagreed that he fell more than once. He agreed that he had never met Nina Papetti before and therefore that he has never had any negative dealings with her. He agreed that there was no barrier behind his jeep that would prevent it from going backwards. He told the police in a conversation way saying “I’m using this as my house.” He testified that the officer lied when he said that he swore.

He said “‘F’ officer, I’m using it as my home.” He denied that he thought he was in his house when he said this. [ 40 ] It was put to him that his plan was that when he thought he was okay to drive, he would drive home. He replied he was not staying awake and was staying there for the night to sleep. If he woke up the next morning and knew he could not drive, he would have walked. Then he said he would have walked home in the morning when he was able to walk home. Specifically he testified as follows: Q.

You, your plan was, when you thought that you were okay to drive because the alcohol amount in your body and your blood, whatever, had gone down, you were gonna drive home. A. I was not staying awake. I, I knew I was staying there for the night to sleep. Q. But, but your plan was, you’re not gonna stay there forever. Your plan was to go home when you thought, to drive home, let me be specific.... A. No, don’t say drive, because if I, if I was, if I woke up the next morning and knew I couldn’t drive, I would have walked. Q. But, that would have been based on your opinion, correct? A.

That would have been based on what, what I, what I would have done. I, I’m not, I don’t, like I don’t understand your question... Q. Well... A. ...you’re.... Q. ...well, I think we’re almost agreeing. You would have driven home when you thought it was okay to drive home because the alcohol had left your body. A. I, I don’t, you know if I, if I felt I – no, it’s, I don’t understand what you’re saying. I would have walked home in the morning when I was able to walk home. At that time, I couldn’t walk. Q.

You would have removed that vehicle from the parking lot where it was parked when you felt you were able to do so. A. No, I wouldn’t have. I would have walked home when I got up in the morning. [4] [ 41 ] The defendant agreed that he drove after drinking at his friend’s house but noted he had only had three beers in four hours. He has no training on the elimination of alcohol from blood.

The Legal Issues Raised [ 42 ] In addition to the factums filed by both the Crown and the defence in advance of the trial, the applicant/defendant made both oral and filed written submissions in this matter and the Crown filed written submissions. Alleged Charter Breaches [ 43 ] The applicant alleges breaches of sections 8 and 9 of the Charter . An alleged breach of sections 10(

a) and 10(

b) was orally abandoned at this trial. [ 44 ] The issue to be determined on this voir dire is whether P.C. Deleeuw had reasonable and probable grounds to believe that

the defendant had the care or control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol, [45] In R. v. Haas, (ON CA), [2005] O.J. 3160, the Ontario Court of Appeal examined the issue as to whobears the burden of proof to establish reasonable and probable grounds in the context of a demand for breath samples pursuant to section254(3) of the Code. It is clear that the taking of breath samples is a seizure for purposes of

section 8 of the Charter and sincewarrantless, once the defendant raises an alleged breach of

section 8 the Crown bears the burden of proof on a balance of probabilitiesthat the seizure is reasonable. It is therefore for the Crown to establish on the balance that the demand for samples pursuant tosection 254(3) was based on reasonable and probable grounds. It has been held that reasonable and probable grounds to arrest or tosearch has both thereby providing the requisite grounds for a demand pursuant to section 254(3) of the Criminal Code a subjective andan objective component. The subjective component requires that the officer honestly believe that the defendant has committed anoffence.

The objective component means that the officer’s opinion must be supported by objective facts. Judicial scrutiny of reasonableand probable grounds to make a Breathalyzer demand must recognize the context within which the police officer’s obligation operatesand within this context is not an onerous threshold. The standard of proof is one of “reasonable probability” or “reasonable belief”.

There must objectively be reasonable grounds to believe, not a prima facie case that the applicant’s ability to operate a motor vehicle wasat least slightly impaired.[5] [46] In the case at bar, the officer must have held both a subjective belief that the defendant was impaired by the consumptionof alcohol and that he was in care or control of the motor vehicle, both of which must be supported by objective facts.[6] [47] It is conceded by the defence that the defendant was impaired by the consumption of alcohol and that his ability tooperate a motor vehicle would have been impaired by the consumption of alcohol when he was found in the driver’s seat of his motorvehicle by P.C.

Deleeuw. The applicant’s submission is that the defendant was detained by the officer absent investigative authority todo so or in the alternative, assuming P.C. Deleeuw had the investigative authority to conduct an investigation resulting in a lawfuldetention, the subsequent demand made to provide breath samples was without the required subjective belief on his part that thedefendant was in care or control of his motor vehicle. [48] I reject both of these submissions. Whether or not the officer believed he was acting on the authority of

section 48 of theHighway Traffic Act and whether or not

section 48 of the Highway Traffic Act would authorize the investigative detention of thedefendant in the parking lot, noting that the vehicle was likely in a private parking lot albeit to which the public had access, he clearlyhad a common law duty to investigate the defendant in the parking lot given the information he had received through dispatch as to theobservations of the civilian witness and his own observations of the defendant when he arrived at the scene.

In my view it cannot besaid that the defendant was unlawfully detained in circumstances where the door of his vehicle was opened after attempts had been madeto wake him up and he had been unresponsive to those attempts while slumped over the steering wheel. Although the officer testifiedthat he formed the opinion that he was impaired by alcohol and that is all before he was arrested, when asked about the words of arresthe testified that he was arrested for impaired care or control of a motor vehicle.

Although not articulated I find that the officer didsubjectively believe that he had reasonable grounds and objectively did have reasonable grounds to believe that the defendant was in careor control of his motor vehicle, indeed the presumption alone in section 258(1)(

a) of the Criminal Code would provide valid grounds. He also observed keys and although he did not try them in the ignition it was also reasonable to assume as he did that they would containthe keys to the ignition, given that the defendant was in the motor vehicle at the time. His arrest and subsequent demand for breath testswere both lawful. [49] The second submission relates to the continued detention of the defendant at the police station after the samples of hisbreath had been taken. It was argued that the defendant’s continued detention was arbitrary and in breach of

section 9 of the Charter. The argument of the applicant to this regard is set out in paragraph 34 of the applicant’s written submissions marked Exhibit “AA” asfollows: The Crown offered no evidence specific to this case. None of the circumstantial evidence available in R. v. Kisil with respect to whoreleased Mark Jennings or what criteria, if any, were applied or what elimination rate, if any was used, in this case. (R. v. Kisil). Thelack of criteria and direct evidence means that this Court must conclude that the detention was arbitrary.

The fact that both the detentionand release were arbitrary is clearly demonstrated by the fact that when elimination rates of 10 millilitres and 15 millilitres are usedthey indicate that Mark Jennings would still have been well above the legal limit of .80 when he was released. Similarly there was noevidence to suggest that anyone asked Mark Jennings if a responsible adult would come for him. (R. v. Kisil 2009 ONCJ 424 ,[2009] OJ 3821 @ pars. 15–17, 19, 20–25; R. v.

De Lima 2010 ONCJ 230 @ pars. 16-21, 23–29, 31-39) [50] All of the evidence called supports a finding that it is a policy of the Niagara Regional Police Service not to releasepersons directly into the community who are impaired by the consumption of alcohol to the extent that they would pose a danger tothemselves and others. The evidence at this trial is supportive of the defendant’s condition as it relates to alcohol as having continued topose a risk to both himself and the public if released directly into the community for some considerable time after the samples weretaken.

Indeed as noted by the applicant in paragraph 34 above, even when released his blood-alcohol levels were likely in excess of thelegal limit. I do not believe however that this supports the defence position that the defendant’s release into the community was arbitraryor that he was arbitrarily detained in contravention of

section 9 of the Charter. The policy apparently is to wait until release into thecommunity would not pose a danger to the defendant or the community. This policy finds support in the case law.[7] From the evidencecalled, it is the Staff Sergeant in charge of the Division who is the individual who makes the decision as to when it would be appropriateto release. There is no suggestion that the Staff Sergeant in this case did not put his or her mind to that issue, indeed the release wasaffected by someone on the documentation who is known to be a Staff Sergeant by P.C. Lucy.

The release could not in my view be saidto have been arbitrary for the simple reason that he may have been over the legal limit to drive. There is no suggestion that he had accessto a motor vehicle. [51] In any event even if it could be said that the failure of the police to ask the defendant earlier if there was anyone to whomhe might be released infringed

section 9 of the Charter, a remedy of a stay of proceedings, which is a remedy of last resort, in my view isnot warranted on these facts. A remedy of an exclusion of evidence would also not be appropriate having regard to the seriousness of the

breach, the impact of the breach on the Charter-protected interests of the defendant, and society’s interest in the adjudication of the caseon the merits.[8] On the balance it cannot be said that the administration of justice would be brought into disrepute by the failure of thepolice to make inquiries of the defendant as to persons to whom he might be released.

The evidence called on the voir dire including theresults of the breath testing and observations of the defendant will be introduced on the trial proper.[9] Care or Control [52] Before the issue of care or control can be determined, it falls first to assess the issues raised as to the credibility andreliability of the evidence called in light of the onus upon the Crown, on the totality of the evidence, to prove each element of the offencebeyond a reasonable doubt. [53] In assessing the evidence, I have considered the direction provided by the Supreme Court of Canada in R. v.

W. (D).(1991), (SCC), 63 C.C.C. (3d) 397. The Supreme Court of Canada has clearly indicated that in cases where the credibility of the defendant is at issue that the rule of reasonable doubtapplies to that issue. At page 409 of that decision the Supreme Court of Canada provided the following instruction to the trial judges: First, if the trial judge believes the evidence of the defendant, the defendant must be acquitted. Second, if the trial judge does not believe the evidence of the defendant but is left in reasonable doubt by it, the defendant must beacquitted.

Third, even if the trial judge is not left in doubt by the evidence of the defendant, the trial judge must still decide, whether the guilt of thedefendant has been established beyond a reasonable doubt on the whole of the evidence. [54] In this case the defence suggests that the reliability of the evidence of the civilian witness Nina Papetti is severelyundermined by her evidence that the jeep was white when in fact the jeep was black.

I however agree with the Crown’s submission thather mistaken belief as to the colour of the jeep does not on all of the evidence impact upon her reliability as a witness regarding otherobservations. When reviewing her evidence as to the colour of the jeep, noting she was able to say correctly that it was a jeep or SUV,she was not definite as to its colour. Her evidence was that she believed it was a white jeep or SUV but that it was a while ago. I do notfind this mistaken belief of hers to be such that it would undermine her testimony in other areas of her evidence.

She did not know thedefendant prior to this evening. In calling the bar and then the police she was acting out of a concern for public safety. The defendant onthe other hand was recalling events that occurred when he was highly intoxicated. [55] Ms. Papetti gave her statement to the police at the window of a police vehicle as it was typed by P.C. Ryan. In thosecircumstances it would not be unusual her statement to be less detailed than her testimony. Notwithstanding that Ms.

Papetti’s statementto the police did not entirely coincide with her testimony as to the number of times she observed the defendant fall or the keys fall to theground, I find on the totality of the evidence that the defendant did fall more than once and that his keys fell more than once as he madehis way to his vehicle. I further find that he started the vehicle more than once, and I reject the defendant’s evidence which is in directcontradiction to Ms. Papetti’s evidence that he only started the vehicle once to power his cell phone.

Her evidence in my view isconsistent with someone who was probably attempting to start the vehicle to drive away but was unable to drive away because thevehicle repeatedly stalled given the intoxicated condition of the driver. [56] The standard of proof required to rebut the presumption of care or control set out in section 258(1)(

a) of the Code is on abalance of probabilities and in the absence of such proof the presumption will prevail.[10] I find that the defendant has not rebutted thepresumption given my finding of fact that it was more probable than not that the defendant tried to drive home but was unable to becauseof his extreme level of intoxication. [57] However even if I had found on the balance that the defendant was merely attempting to power his cell phone and had nointention to drive the motor vehicle and intended to sleep it off, I find that the defendant was still in care or control of the motor vehiclein that he had performed substantial acts which involved some use of the car or its fittings and equipment and I find that there was a realrisk that in his intoxicated state he might wake up, change his mind and drive away in the motor vehicle while still impaired to do so bythe consumption of alcohol or with excess blood-alcohol in his body.[11] The defendant’s own testimony changed to that regard as setout earlier at paragraph [40].

At first he testified that if he woke up and knew he could not drive, he would have walked. Then whenasked if he would rely on his own opinion as to whether or not he could drive, he would have walked home when he got up in themorning. He also testified that he put his keys where he knew he could find them when he woke up the next morning. The defendant’splans had already changed twice during the course of the evening; the first time when he decided not to drive home but to go to hisgirlfriend’s and the second time when he decided not to go to his girlfriend’s but to spend the night in his car.

The defendant was highlyintoxicated. The evidence suggests that when he was released from the Division some eight and a half hours later the level of alcohol inhis body was likely still high. On the evidence called I find beyond a reasonable doubt that there was a very real risk that the defendantwould have driven his motor vehicle when he felt it was all right for him to do so, and at a time when his ability to do so would still havebeen impaired by alcohol.

He will therefore be found to be in care or control of his motor vehicle while impaired by alcohol and whilehaving over 80 milligrams of alcohol in 100 millilitres of his blood. Released: October 26, 2011 Signed: “Justice A.J. Watson” _______________________ Justice A.J. Watson